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Reginelli v. Boggs

Supreme Court of Pennsylvania

March 27, 2018

ELEANOR REGINELLI AND ORLANDO REGINELLI
v.
MARCELLUS BOGGS, M.D., MONONGAHELA VALLEY HOSPITAL, INC., AND UPMC EMERGENCY MEDICINE, INC., D/B/A EMERGENCY RESOURCE MANAGEMENT, INC. APPEAL OF: MONONGAHELA VALLEY HOSPITAL, INC. ELEANOR REGINELLI AND ORLANDO REGINELLI
v.
MARCELLUS BOGGS, M.D., MONONGAHELA VALLEY HOSPITAL, INC., AND UPMC EMERGENCY MEDICINE, INC., D/B/A EMERGENCY RESOURCE MANAGEMENT, INC. APPEAL OF: UPMC EMERGENCY MEDICINE, INC. AND MARCELLUS BOGGS, M.D. ELEANOR REGINELLI AND ORLANDO REGINELLI v MARCELLUS BOGGS, M.D., MONONGAHELA VALLEY HOSPITAL, INC., AND UPMC EMERGENCY MEDICINE, INC., D/B/A EMERGENCY RESOURCE MANAGEMENT, INC. APPEAL OF: MONONGAHELA VALLEY HOSPITAL, INC. ELEANOR REGINELLI AND ORLANDO REGINELLI
v.
MARCELLUS BOGGS, M.D., MONONGAHELA VALLEY HOSPITAL, INC., AND UPMC EMERGENCY MEDICINE, INC., D/B/A EMERGENCY RESOURCE MANAGEMENT, INC. APPEAL OF: UPMC EMERGENCY MEDICINE, INC. AND MARCELLUS BOGGS, M.D.

          ARGUED: April 4, 2017

          Appeal from the Order of the Superior Court entered October 23, 2015 at No. 1584 WDA 2014, affirming the Order of the Court of Common Pleas of Washington County entered August 29, 2014 at No. 2012-5172

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          DONOHUE, JUSTICE.

         The Peer Review Protection Act, 63 P.S. §§ 425.1-425.4 ("PRPA"), provides a narrow evidentiary privilege to protect the "proceedings and documents of a review committee" conducting peer review activities by professional health care providers in conformity with its provisions. In this medical malpractice action, Monongahela Valley Hospital ("MVH") contracted with UPMC Emergency Medicine, Inc. ("ERMI") to provide staffing and administrative services for its emergency room. Both MVH and ERMI claim that the PRPA's statutory evidentiary privilege protects from disclosure the performance file of Marcellus Boggs, M.D. ("Dr. Boggs") that had been prepared and maintained by Brenda Walther, M.D. ("Dr. Walther"), who served as the director of MVH's emergency department and was Dr. Boggs' supervisor.[1] Dr. Boggs and Dr. Walther were employees of ERMI. Under the facts presented in this case and the applicable statutory language of the PRPA, neither ERMI nor MVH may claim the evidentiary privilege. ERMI is not a "professional health care provider" under the PRPA, and the performance file at issue here was not generated or maintained by MVH's peer review committee. We therefore affirm the decision of the Superior Court upholding the trial court's ruling that PRPA's evidentiary privilege has no application in this case.

         In January 2011, Eleanor Reginelli was transported by ambulance to MVH's emergency department with what she reported at the time to be gastric discomfort. She was treated by Dr. Boggs. Mrs. Reginelli and her husband, Orlando Reginelli, allege that Dr. Boggs failed to diagnose an emergent, underlying heart problem and discharged her without proper treatment. Several days later, Mrs. Reginelli suffered a heart attack.

         In 2012, the Reginellis filed an amended complaint containing four counts. Count I asserts a negligence claim against Dr. Boggs with respect to his treatment of Mrs. Reginelli. Count II is a claim for corporate negligence against MVH, alleging that it failed to hire appropriately trained staff, to oversee staff and to adopt adequate policies. Count III sets forth negligence claims against MVH and ERMI, contending that they are vicariously liable for the acts of their agents (ostensible and/or actual), employees and/or servants. Count IV asserts a claim for loss of consortium against all defendants. The defendants filed their respective answers and new matter. In the year that followed, the Reginellis deposed, inter alia, Dr. Boggs and Dr. Walther. At her deposition, Dr. Walther testified that she prepared and maintained a "performance file" on Dr. Boggs as part of her regular practice of reviewing randomly selected charts associated with patients treated by Dr. Boggs (and other ERMI-employed emergency department physicians). N.T., 2/5/2014, at 62-63.[2] In response, the Reginellis filed discovery requests directed to MVH[3] requesting, among other things, "the complete 'performance file' for [Dr. Boggs] maintained by [Dr. Walther.]" MVH objected to production of the performance file, asserting that it was privileged by, inter alia, the PRPA.

         On June 12, 2014, the Reginellis filed a motion to compel discovery directed to MVH, seeking production of Dr. Boggs' performance file. In its written reply to the motion to compel, MVH argued that "the requested items are created and used for the purpose of reviewing the services being rendered at [MVH's] emergency room and other departments and fall squarely under the protection of the [PRPA]." Reply to Plaintiffs' Motion to Compel, 6/19/2014, ¶ 14. In an accompanying brief in support, MVH further indicated that "it is difficult, if not impossible, to understand how these reports and files could not be seen as evaluating the quality and efficiency of services ordered or performed by health care providers." MVH's Brief in Opposition to Plaintiffs' Motion to Compel, 6/19/2014, at 6 (citing 63 P.S. § 425.2).

         On August 29, 2014, the trial court granted the motion to compel, ordering that MVH produce Dr. Boggs' performance file to the Reginellis. In its order, the trial court stated that the "documentation shall remain confidential with Plaintiff's counsel, and shall not be copied or reproduced in any fashion, and in the event that [it] determines same is not relevant evidence in the case sub judice, same shall be returned to [MVH]." Order, 9/29/2014.

         ERMI and Dr. Boggs[4], who had not previously participated in the above-described discovery proceedings, filed a motion for a protective order, asserting its entitlement to claim the evidentiary privilege under the PRPA for the peer review work performed by its employee, Dr. Walther. ERMI contended that Dr. Walther created and maintained the performance file solely "on behalf of [ERMI]." Motion for Protective Order, 9/22/2014, ¶ 21. ERMI explained that while MVH has a peer review committee, Dr. Walther's work was "separate 'outside' peer review [] conducted by [ERMI]." Id. Moreover, contrary to the Reginellis' repeated claims that any privilege claim had been waived when ERMI provided Dr. Boggs' performance file to MVH, ERMI insisted that the performance had at all times remained in Dr. Walther's sole possession. Id., ¶ 16 ("The file at issue in the present matter was maintained solely by Dr. Walther as part of her review and evaluation of Dr. Boggs' performance."). Because the performance file had not been shared with MVH, ERMI argued that it had no relevance in this case because, first, Dr. Walther had not selected Mrs. Reginelli's file for review; and second, no claim for corporate negligence had been asserted against ERMI, and since Dr. Boggs' performance file constituted a review of the work of an ERMI employee, it was irrelevant to the claim of corporate negligence asserted against MVH. Id., ¶ 22.

         MVH filed a motion for reconsideration of August 29, 2014 order. Contrary to ERMI's claim that Dr. Walther created and maintained performance files "on behalf of ERMI, " MVH posited that Dr. Walther's peer review work of the performance of emergency department physicians was performed "on behalf of both ERMI and MVH." Motion for Reconsidertion, 9/22/2014, ¶ 11. Similar to its initial arguments in opposition to the motion to compel, MVH argued that Dr. Walther's performance reviews were "for the evaluation of the quality and efficiency of health care services, ensuring compliance with laws and regulations and evaluating and improving the quality of health care rendered by emergency department physicians, as set forth in the PRPA." Id., ¶ 21. MVH also offered to produce Dr. Boggs' performance file to the trial court for in camera review "in order to satisfy this [h]onorable [c]ourt of the applicability of the PRPA and its prohibitions of disclosure of such information to that file at issue." Id., ¶ 22.

         Before the trial court could rule on either ERMI's motion for protective order and MVH's motion for reconsideration, both entities appealed the trial court's August 29, 2014 order to the Superior Court. In an order dated September 26, 2014, the trial court granted MVH's motion to include Dr. Boggs' performance file in the judicial record under seal and to retain it under seal during the pendency of the action. In the trial court's written opinion pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, it first ruled that any evidentiary privilege was waived when Dr. Walther and ERMI shared the documents with MVH. Trial Court Opinion, 11/24/2014, at 2 ("The PRPA privilege, like other privileges, applies only to information which remains exclusive."). The trial court further ruled that even if Dr. Walther had kept the documents exclusively to herself, "she was not employed by [MVH], and was in fact an agent of ERMI, an entirely distinct entity, " and, as a result, "it is untenable that [MVH] could claim a privilege for documents that it neither generated nor maintained." Id. at 2-3.

         On appeal to the Superior Court, [5] MVH reasserted its contention that Dr. Walther, as the director of emergency medical services at MVH, "is regularly involved in peer review of all of the emergency department physicians and the quality assurance process for the emergency department, on behalf of both ERMI and MVH." MVH's Superior Court Brief, 1584 WDA 2014, at 24. MVH argued that the information contained in Dr. Boggs' review file "is exactly the type of information protected from disclosure by the PRPA." Id. at 29. MVH insisted that the privilege had not been waived merely because Dr. Walther was an employee of ERMI, since ERMI contracts with MVH to provide emergency room services to MVH, and that Dr. Walther, while an employee of ERMI, is also a member of the medical staff of MVH and thus serves MVH as an independent contractor. Id. at 31. According to MVH, privileges are equally applicable to independent contractors or consultants as they are to employees as long as that independent contractor has a similar role to that of an employee, and no provision of the PRPA limits the evidentiary privilege to employees. Id. at 31-32. Given her dual roles as a member of MVH's medical staff and an employee of ERMI, MVH contended that the two entities shared the PRPA's evidentiary privilege, because "the two entities are contractually bound together to provide medical services, where both entities have obligations to oversee the practice of physicians, and where both entities are, in essence, sharing the medical and managerial prowess of Dr. Walther." Id. at 33.

         In contrast to MVH's arguments, before the Superior Court ERMI continued to maintain that Dr. Walther's peer review work was "created and maintained solely by Dr. Walther on behalf of her employer." ERMI's Superior Court Reply Brief, 1585 WDA 2014, at 6. ERMI also repeated its assertion that Dr. Boggs' performance file "was not reviewed by and/or disseminated to [MVH's] Peer Review Committee." Id. at 16. Rather than arguing that it shared the evidentiary privilege with MVH, ERMI insisted that ERMI and Dr. Boggs, as "as Dr. Walther's employer and as the person whose 'performance file' is to be disclosed by the Trial Court's August 29, 2014, Order, " are the entities "entitled to claim protection under the [PRPA]." Id. at 25.

         The Superior Court affirmed the trial court's order requiring production of Dr. Boggs' performance file. Reginelli v. Boggs, 1584 WDA 2014, 2015 WL 6456401 (Pa. Super. Oct. 23, 2015). It first concluded that ERMI was not entitled to claim the PRPA evidentiary privilege, ruling that "ERMI, as an independent contractor, is not an entity enumerated in the [PRPA] as being protected by peer review privilege." Id. at *3. The Superior Court also held that MVH could not claim the privilege based upon the trial court's factual finding that MVH "neither generated nor maintained Dr. Boggs' performance file." Id. at *2. The Superior Court further indicated that even if either party could claim an entitlement to the privilege, "ERMI shared the file with [MVH] … [and thus] any privilege for Dr. Boggs' performance file that may have existed was destroyed via disclosure to [MVH]." Id. at *3. In so ruling, the Superior Court disagreed with ERMI's assertion that the performance file had remained exclusively in Dr. Walther's possession, and indicated that "it is apparent that ERMI shared the filed with [MVH], since the Reginellis sought the file from ]MVH] and [MVH] has provided it in camera." Id.

         ERMI and MVH appealed the Superior Court's rulings to this Court, each claiming an entitlement to the PRPA's evidentiary privilege with respect to Dr. Boggs' performance file.[6] Our task in this regard is primarily one of statutory interpretation, which presents issues of law requiring that we exercise a de novo standard of review and a plenary scope of review. See, e.g., Bowling v. Office of Open Records, 75 A.3d 453, 466 (Pa. 2013). As with all questions of statutory interpretation, our object is to ascertain and effectuate the intention of the General Assembly, giving effect, if possible, to all provisions of the statutory provisions under review. 1 Pa.C.S. §§ 1921(a). The best indication of legislative intent is the statute's plain language. 1 Pa.C.S. § 1921(b).

         Pennsylvania courts have recognized the laudable goal of the PRPA, which was enacted "to serve the legitimate purpose of maintaining high professional standards in the medical practice for the protection of patients and the general public" based upon the General Assembly's determination that "because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities." See, e.g., McClellan v. Health Maint. Org. of Pa., 686 A.2d 801, 805 (Pa. 1996) (plurality) (citing Cooper v. Delaware Valley Medical Center, 630 A.2d 1, 7 (Pa. Super. 1993), aff'd, 654 A.2d 547 (Pa. 1995)); Sanderson v. Frank S. Bryan, M.D., Ltd., 522 A.2d 1138, 1140 (Pa. Super. 1987) ("[t]hrough these immunity and confidentiality provisions [§§ 425.3, 425.4] ... the Legislature has sought to foster free and frank discussion by review organizations") (citing Steel v. Weisberg, 500 A.2d 428, 430 (Pa. Super. 1985)); Robinson v. Magovern, 83 F.R.D. 79, 86 (W.D.Pa. 1979) (in enacting the PRPA, the General Assembly's intent was to "encourage peer evaluation of health care provided so as to (1) improve the quality of care rendered; (2) reduce morbidity and mortality; and (3) keep within reasonable bounds the costs of health care"); see also 63 P.S. § 425.1, Historical and Statutory Notes (indicating that the PRPA is "[a]n Act providing for the increased use of peer review groups by giving protection to individuals and data who report to any review group").

         In interpreting its provisions, however, we may not ignore the unambiguous statutory language of the PRPA "under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). Such is particularly true in the present context, since "evidentiary privileges are not favored, as they operate in derogation of the search for truth." In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa. 2014). As we have stated, "exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Commonwealth v. Stewart, 690 A.2d 195, 197 (Pa. 1997) (quoting Hutchison v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992)). Statutory privileges reflect public policy determinations by the General Assembly, and "where the legislature has considered the interests at stake and has granted protection to certain relationships or categories of information, the courts may not abrogate that protection on the basis of their own perception of public policy unless a clear basis for doing so exists in a statute, the common law, or constitutional principles." McLaughlin v. Garden Spot Village, 144 A.3d 950, 953 (Pa. Super. 2016) (quoting V.B.T. v. Family Servs. of W. Pa., 705 A.2d 1325, 1335 (Pa. Super. 1998), aff'd, 728 A.2d 953 (Pa. 1999) (per curiam)).

         Before considering the arguments of the parties, we first set forth the provisions of the PRPA at issue here, beginning with the definition of "peer review:"

"Peer review" means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations. Peer review, as it applies to veterinarians, shall mean the procedure for evaluation by licensed doctors of veterinary medicine of the quality and efficiency of veterinary medicine ordered or performed by other doctors of veterinary medicine with the standards set by an association of doctors of veterinary medicine and with applicable laws, rules and regulations.

63 P.S. § 425.2.

         The PRPA also defines the terms "professional health care providers" and "review organization" as follows:

"Professional health care provider" means
(1) individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not ...

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